End of Life Choice Bill

Members, when we were last considering the bill, the committee had completed the debate on Part 3, and we come now to Part 4. For members’ information, all the Supplementary Order Papers (SOPs) on the End of Life Choice Bill that are fewer than five pages long have been collated into sets on the Table, and Supplementary Order Papers longer than five pages are on the Table individually.

I wish to let members know that SOP 383 in the name of Harete Hipango, which relates to duties in relation to the Treaty of Waitangi, and SOP 382 in the name of the Hon Alfred Ngaro, which relates to cultural considerations, set operational requirements that should have applied to the provision of assisted dying services—i.e., taking account of that person’s ethnic background or a person’s family and whānau participation. As such, these amendments should be in Part 2 and cannot be in Part 4, which contains only provisions of general application. Therefore, there will be no debate on these Supplementary Order Papers.

That brings us then to Part 4, debate—

💬 Hon Michael Woodhouse: I raise a point of order, Madam Chairperson. Thank you for that ruling, Madam Chair. I just wonder whether there were references in Part 2 to cultural dimensions, and if not, whether or not the presiding officers have considered whether that SOP or SOPs would therefore constitute a new part.

CHAIRPERSON (Hon Anne Tolley): Yes, we have considered that, and I think the writers of the SOP also considered that. In Part 2, we did consider the taking of cultural family or whānau into consideration. That was debated.

💬 Chris Penk: I raise a point of order, Madam Chairperson. With regard to both of those SOPs you’ve advised to be ruled out, I seek your guidance in relation to, for a start, SOP 382—the cultural considerations one we might refer to. In fact, you’ll see that the scope is broad enough that it would also include Part 3. So it might be your ruling that it’s not appropriate for Part 4 in that it relates to Part 2 and Part 3, but I think, with all due respect, you can’t fairly say that it relates only to Part 2 and should therefore have been confined to that debate. It refers to any person or organisation that is defined as responsible, accorded a duty under the Act, and that clearly could be not only a person or organisation under Part 2 but also Part 3—for example, the Support and Consultation for End of Life in New Zealand Group and the review committee.

CHAIRPERSON (Hon Anne Tolley): Well, I thank the member for clarifying my ruling to include Part 3 as well as Part 2. OK, so now we’re on Part 4.

💬 Hon Alfred Ngaro: I raise a point of order, Madam Chairperson.

CHAIRPERSON (Hon Anne Tolley): A point of order. I hope we’re not going to keep on debating, because I have actually ruled.

💬 Hon Alfred Ngaro: Not wanting to relitigate your ruling, Madam Chair, but just in regards to Part 4, “Related matters”, and clause 24, “Other rights and duties not affected”—under that, is there also provision and ability to be able to look at parts which have been ruled out on SOP 382 but do relate to the aspect in regards to the roles and responsibilities that could be under that provision, under other rights and duties, especially in the duty of care of those as health practitioners? So I’m just wanting to seek your clarification, because it is relating to Part 4. It is about related matters. It does go to the point of clause 24, other rights and duties not affected by that. So I’m just seeking your clarification.

Also, in clause 25, “Effect on contracts of death under this Act”, we do know that there are other forms of legislation that do talk about responsibilities under the Treaty—the Coroners Act in particular—to do with that, which has been before this House, where there are particular roles and responsibilities under the duty of care, especially the effects on contracts of death under this Act. So I’m just seeking your clarification, because those particular parts of those SOPs actually do relate to parts in Part 4.

CHAIRPERSON (Hon Anne Tolley): Yeah, look, I understand exactly the concern that the member is expressing. I refer him to his colleague’s SOP 364, which proposes an SOP that is in a form that is in order. That could have been used to achieve the ends that the member was trying to propose with his SOP. So perhaps the member might like to have a look at SOP 364.

💬 Hon Alfred Ngaro: Speaking to the point of order, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): Well, I don’t need any more help. I’ve actually ruled, and I’ve been pretty indulgent.

💬 Hon Alfred Ngaro: Just talking about process, not wanting to take against your ruling then. Since you have then opened the opportunity under that, are there parts of the SOP that you’ve ruled out—

CHAIRPERSON (Hon Anne Tolley): I’ve ruled out the whole lot.

💬 Hon Alfred Ngaro: —that we can speak to? That’s correct, but you’ve also said that under SOP 364, there is potential provision there to include that. So is there a way to—

CHAIRPERSON (Hon Anne Tolley): No, no. I’m sorry; the member misunderstands me. Your colleague Melissa Lee phrased SOP 364 in a way that was in order. You might like to have a look at it and resubmit an SOP in that form, which may well be in order then—may, depending on how it’s worded. In the meantime, the other two are out of order and not necessarily to be debated, even though we’ve debated them quite well. OK, so that brings us to Part 4.

Thank you very much, Madam Chair. As you’ve said, we now turn to Part 4 of the End of Life Choice Bill, and I’d like to quickly run through the clauses that comprise Part 4, which is entitled “Related matters”. We are now debating not so much the main provisions of the End of Life Choice Bill but some of the changes to other enactments and some of the provisions that are put in for the avoidance of doubt rather than the main principles of the bill.

Clause 23 allows the Governor-General, by Order in Council, to make regulations prescribing forms. This is being done in order that if there are, for example, regulations needing to be made, as with most pieces of legislation it’s important that the Minister, through the Governor-General, can do that. My Supplementary Order Paper 259 makes a slight change: rather than allowing the Governor-General only to prescribe forms, they can make more general regulations to assist the functioning of the bill that may be necessary for its administration or giving it full effect. Members will see in a later section the duty of creating forms, such as those required to be returned by medical practitioners to the registrar, are able to be made by the Director-General of Health in a later clause.

Clause 24 is what I would describe as a for the avoidance of doubt clause. It makes it clear that nothing in this bill prevents somebody exercising their rights, which are clearly laid out in the New Zealand Bill of Rights Act, to refuse nutrition, hydration, or other life-sustaining medical treatment, and that nothing in this bill takes away a doctor’s duty to alleviate suffering in accordance with standard medical practice.

Clause 24A is a new clause, which, again, I would describe as being there for the avoidance of doubt. It states that one cannot have an advance directive. In some countries where end of life choice is legal, they actually allow people to sign an advance directive that says, “If I meet certain conditions, I would like other people to decide that my life should end.” I’ve been opposed to that from the beginning, over four years of campaigning on this bill, and clause 24A reinforces that.

Clause 24B, another new clause, says, “Welfare guardians have no power to make decisions or take actions under this Act”. So, again, you cannot have a welfare guardian making decisions for you under the End of Life Choice Act. This was already very clear, because the medical practitioners have to communicate with the person, and they have to do that directly, but it’s made clearer by 24B.

Clause 25 says that this Act has no effect on contracts. If for instance a person had a life insurance contract, the fact that they choose to avail themselves of the End of Life Choice Act does not alter that contract. A lot of people have been concerned about what the End of Life Choice Bill might mean for life insurance. This makes it absolutely clear that there will be no changes to life insurance policies if you take advantage of the End of Life Choice Bill.

Clause 25A, “Restrictions on making public details of assisted dying death”—this is important. It enforces the rules around suicide reporting that the media have been following in New Zealand for the past several years. Of course there will be statistics, of course there will be data, of course there will be oversight by the Ministry of Health, by Support and Consultation for End of Life in New Zealand, by the review committee, and by the registrar, but the public reporting of specific details of how a person dies under this Act will be prohibited, and I think that’s desirable. I note there are a few amendments on the Table from Chris Penk. Chris has one to remove these restrictions and another amendment to add these restrictions to the bill, so, possibly, he forgot that he’d put one in before he put the other in, I’m not quite sure, but that’s Chris Penk for you.

Clause 26 is a really critical clause. This is about immunity. Fundamentally, under this bill, helping somebody procure suicide remains a crime in the Crimes Act. A person has immunity from being involved in that activity only if they follow the provisions in this Act, the very high hoops and tight safeguards that must be followed if a person wants to comply with the law under this Act. It’ll become critical, as we address some of the other amendments members have proposed, to be clear that if a person dies at your hand and you don’t properly follow the provisions of this bill, then you are still fully liable under the Crimes Act for all of the severe penalties for procuring suicide or causing death that are there. However, a person who follows all the provisions in this Act does have criminal and, in clause 27, civil liability.

Clause 27, “Offences”: there are a number of offences that might take place separate from the cause of death, and this is something that I think some members submitting amendments may not have fully understood if they read the bill. There is the crime of wrongly ending a life without the person’s consent, without checking that they’re competent, without due process, and so on. That is a very serious crime, and that remains to be punished under the Crimes Act for the various sanctions that people face if they do that, but there are also, conceivably, other offences under this Act where a person doesn’t actually die but where, nevertheless, somebody didn’t fill out a form correctly or somebody, somehow, you know, didn’t properly consult or report but there wasn’t any death involved. Now, I think it’s desirable to have penalties in that instance. I think we are taking a very hard line as a Parliament by saying that you can be fined $10,000 or go to prison for three months for making an administrative error under this bill. This is a very, very tight and strict set of rules under the End of Life Choice Bill. However—however—we are not applying the full penalties of sending someone to jail, for instance, for 14 years for an administrative error, and I think some of the members who have been putting up amendments around changing the penalties may not have properly understood those features of the bill, which is a shame. If they’d come and talked to me, I would’ve been more than happy to help.

Clause 27A allows the director-general to approve forms, so I raise this in the context of clause 23. The Governor-General can make a range of amendments to help with the functioning of the bill, but the creation of forms is really important, too, having standardised forms where people will report—doctors will report, health practitioners will report—proceedings under the bill, whether they’ve properly examined people and come to their conclusions in a robust way. Those require forms, and I think the right place for those to be finalised and established is by the Director-General of Health, which is what 27A provides.

Clause 28, “Amendments to other enactments”, actually contains the Schedule, so clause 28 is quite a significant section. It has amendments to other Acts in Part 1: the Burial and Cremation Act, death certificates; changes to the Coroners Act; changes to the Crimes Act in relation to section 41, in relation to preventing a person from committing suicide; changes to the Health Act and Health and Disability Commissioner Act—there’s been some back and forth with the Health and Disability Commissioner about that, and I hope we’ve got to a happy place with him—Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations—again, there were some necessary changes to the way death certificates, for instance, are done under this Act. The principle there, by the way, is that if a person uses the End of Life Choice Act to end their life, then their death certificate records that fact but also records the underlying cause of death, the thing that qualified them as somebody eligible for assisted dying, and that actually takes us to the end of the bill.

So that’s Part 4, a series of amendments, many of which are for the avoidance of doubt—one of which clarifies the status around criminal and civil immunity of a person who follows this law, another that sets out the penalties for people who make administrative errors under this law in a way that does not lead to loss of life, and also a number of consequential amendments to other bills to make sure that the End of Life Choice Act fits snugly and efficiently with all of the other statutes that this Parliament has made throughout its life.

With that, I hope that we can have a speedy debate where valid questions can be answered and we can move on to more legislation. Thank you, Madam Chair.

Thank you, Madam Chair. I would like to say good choice, but there were some lovely choices over there, so hopefully they’ll get to speak on their Supplementary Order Papers (SOPs) as well. I have four Supplementary Order Papers in my name, and I’d like to move them and potentially speak to all of them, but I’d like to start off with SOP 367 in my name specifically, because the member who sponsors this bill, David Seymour, has actually talked about how some members in this House have actually misconstrued or have misconceptions in regards to the offences in this bill. He actually tried to make light of the fact that there were some offences in this bill which refer to if there are some administrative errors which are actually no big deal.

I’d like to reiterate some of the things that I have actually previously said in this House regarding this bill. This is about life and death. If there is in fact an administrative error, it could potentially result in the death of an innocent person because someone was not fulfilling their duty to the utmost that they could potentially perform in. When we are talking about an offence in this bill, we’re talking about killing someone who may not necessarily have wanted to end their life. If that is the case, to me, that is actually murder, and that has to have the biggest, most powerful and effective administration of what the justice system can actually give this person who has offended. It’s a criminal act.

What I am actually suggesting is that instead of just having a light touch—three months’ imprisonment and a fine not exceeding $10,000 for that which could, effectively, kill someone—I am wanting to amend this clause to suggest that the “person who commits an offence under this section is liable on conviction [of] either or both of the following: (a) imprisonment for a term not exceeding 14 years: [or] (b) a fine not exceeding $250,000.” I believe that is actually what the justice system has on offer for people who commit that crime.

There are a couple of other things that I just want to say in relation to what this—perhaps a question for the sponsor of the bill. When people are wanting to know if there is actually an offence committed, the sponsor suggested that maybe we should have had a conversation with the sponsor. In a hospital when a person is actually wanting to die, that person cannot necessarily turn round to Mr David Seymour and say, “Am I actually doing the right thing? Am I actually committing murder?” I don’t think Mr Seymour will be called on to assist in the decision-making process.

I think the law has to be very, very clear, and if offences are listed in our legislation, it has to be very clear as to what the offence is. There cannot be an error which is administrative—an administrative error, a simple mistake in their judgment, ends up killing someone. I think the member has to be very, very clear. So is it an administrative error? If that is the case, why are we sending them to a three-month imprisonment? The law needs to be very clear, and I think this bill is not very clear in terms of the punishment that people will get if there is an error in their judgment or a mistake that they actually make, or an offence of murder, in effect. I think this law is lacking in the detail, and I think the member probably needs to amend, and I’m trying to assist that member by changing the category of the offence. It is murder, in my opinion.

Thank you very much, Madam Chair. It’s a pleasure to contribute to the Part 4 debate on the End of Life Choice Bill. I’ve got some very specific remarks, of course, to make in relation to certain provisions and Supplementary Order Papers (SOPs), but I thought it was worth starting by placing tonight’s debate in the context of the bill as a whole. Part 4—

CHAIRPERSON (Hon Anne Tolley): No, we won’t. No, we won’t, because the member is dicing with not having any more speeches. So I suggest that he gets on and talks to his SOPs.

I understand, Madam Chair. I am, however—you will be aware—able to speak to matters within Part 4 that are not SOPs as well.

CHAIRPERSON (Hon Anne Tolley): You are.

Thank you, and that is exactly what I’m about to do. So Part 4 is “Related matters”. It is the last chance saloon for Mr Seymour to express to the committee, and particularly those members that are comfortable with the idea of euthanasia or assisted suicide in general but are not comfortable with the lack of protection in his bill—it’s the last chance that he has to demonstrate that he’s thought of all the things that are necessary if one is establishing a regime for assisted dying, as it is euphemistically referred to.

So in that context, I will be speaking about what’s in Part 4, but it’s also worth noting in passing—and in passing only—that which is not referred in Part 4. The—

CHAIRPERSON (Hon Anne Tolley): Well, no. Let’s not go there. Let’s not even try going there.

OK. Looking at, for a start, SOP 381 in my name, you’ll see that that refers to the Schedule, which is within, of course, Part 4, and it’s the Schedule—Part 2 thereof—that establishes some amendments or proposed amendments to the Health and Disability Commissioner’s code of consumer rights as it’s referred to. So in this contribution, I’d like to speak to that and, more particularly, five different aspects of that SOP and what it is hoping to achieve.

The first thing is the overriding nature of it, and that’s deliberate by design in terms of the wording. I’ll come back to that—the fact that it relates to requesting and receiving services. Third, just a quick note on the terminology within that: consumer and provider. Fourth, relating to a petition that was received today, and I’d like the opportunity to highlight that. Then, finally, just establishing to whose benefit exactly the SOP is envisaged to be for.

So, looking at the first of those aspects, I’ve started with the words “Despite anything else contained in this Code”. The reason for that—and, of course, remembering that this is in relation to the code of patients’ rights, as we might say—is this is designed and specifically set up to be an overriding provision whereby everything else in the code is subject to this. Everything else takes a backseat to this overriding provision—this suggestion that I’m about to make. The reason for that is because the right not to be deprived arbitrarily of life is an overriding consideration in itself. The right to life is a fundamental right in the sense that other rights depend upon it—almost all other rights, I suppose we could say. So, for that reason, I want to make it clear that this proposal is such that we would have a person be able to rely on this right notwithstanding anything else that is said in the code of patient rights. So that’s the first thing.

The second thing is the right itself that I would be establishing. That’s for a consumer—I’ll come back to that word in a moment—to have the right to request and receive services only from particular providers. The significance of those two different verbs in relation to services is, of course, that the person has the right to request them and the right to receive them as well. Therefore, there’s a corresponding responsibility on the so-called provider to provide such services, and so it is we sort of have a right-handed duty engaged within that one phrase. Just noting quickly as to terminology that it is a provider and a consumer as defined within the code of rights that I am referring to, in case that terminology should seem strange for what would otherwise traditionally be, for example, a doctor-patient relationship.

Now, passing to the fourth point that I had highlighted I would be bringing to attention of the House: a petition was received today by the Parliament in the name of Renée Joubert, and it pointed to a petition that had been signed by some 2,600 or so other New Zealanders. That referred to, essentially, the same sort of idea as captured in the SOP. I’d like to talk a bit more about it after the break. It is specifically in relation to those who have advocated for such an idea: those who provide care for vulnerable Kiwis towards the end of their life, those who receive such care already—maybe in a palliative situation, maybe in a situation of terminal illness of an uncertain prognosis, certainly many disabled and elderly New Zealanders—those who are very much at the crossroads, the cross-section, and, indeed, the crosshairs of Mr Seymour’s proposal.

So it is that I think it appropriate as we debate Part 4 of the End of Life Choice Bill that we give some recognition to this petition, this proposal from outside the House, and that we inside the Chamber debating and considering ways that we can improve the bill give some expression and voice to that. I want to give fellow members an opportunity to—

CHAIRPERSON (Hon Anne Tolley): Well, as it relates to Part 4. It would be good if the member would get on with relating the petition to Part 4.

Yes indeed, Madam Chair. The petition is exactly the same subject matter of SOP 381.

CHAIRPERSON (Hon Anne Tolley): Good.

Thank you. Happy to clarify. So it is that, as reflected in the petition and, indeed, similar wording but not identical within the explanatory note, and I’ll take the liberty of quoting from my own explanatory notes: “This choice will be meaningful for Kiwis who might otherwise fear diagnosis and prognosis from ‘providers’ (to use the language of the Code of Patient Rights) whose practice includes ending the lives of patients.” So just to spell out very clearly that the SOP is concerned—both in the sense of having as its subject matter but also concerned as in anxious—for those who are feeling in a particularly vulnerable situation, and who could be more vulnerable than those with a terminal illness and all that that implies, including often times at least a temporary situation of depression, as the science indicates is entirely common—certainly not uncommon. It’s for their benefit that we would provide a choice for them to receive services from someone who isn’t actively engaged in providing euthanasia and assisted suicide.

The reason is probably obvious, at least to 119 members of the House, but I’ll spell it out for the benefit of the 120th, which is around, basically, the chilling effect—the fear that a person might have in terms of disclosing the extent of their situation, or even going along to receive health services in the first place and hearing the implications for them that might be put on offer. At least nominally, of course, there is a choice under the bill, and I acknowledge that that at least in philosophical terms is the starting point of the sponsor of the bill and some others who have supported it thus far. But, of course, without rehashing previous discussions in previous parts, of course, the notion of choice in that sense can be rather fluid and flexible.

I just want to focus on that word “choice” as I’ve used it in that SOP’s explanatory note and also in terms of the right, because, by implication, a right can be exercised or not exercised. There’s an implicit choice even there. That is, of course, if the raison d’être, if the rationale for the bill is, of course, around choice, then it should not only be that a person has the choice to die in a certain way and at a certain time and by requiring the State to participate in that, but they should also have the right, actively, to opt out of that. This is not dissimilar, in a way, to the choice that might have been expressed previously in relation to conscientious objection and so on, but they were covered elsewhere, so, again, I hasten to get in ahead of you there, Madam Chair. We won’t go there again, but just to point out this is a different thing. This is a thing that’s quite specific to this SOP in this part because it has not been covered elsewhere, and it’s because this is a suggestion that will amend that which is elsewhere on our statute book—I use the term “statute” rather loosely there. It’s a legislative instrument. It’s if not primary legislation then regulations—in effect, a code which is very important to the lives and health rights of Kiwis.

As such, it is hugely important that colleagues who are minded to support the bill in all other respects do need to—I would urge them—understand and to engage with the fact that this choice has got to be both ways. Patients and New Zealanders have to have the choice not to engage in this way.

Thank you very much, Madam Chair. I’m very delighted, of a sort, to take a call on Part 4. It’s called “Related matters”, obviously, because that’s what it’s titled. There are some substantial elements to this, as there have been with all elements of the bill. So I actually want to start particularly around clause 28. I’m very happy to be corrected—that allows me to talk on some of the schedules, the related parts on the schedules?

CHAIRPERSON (Hon Anne Tolley): Mmm.

Tremendous. Clause 28, both in what returned from the Justice Committee from Part 4 and as also affirmed on Supplementary Order Paper (SOP) 269, in someone’s name, has, effectively, moved what were amendments to other pieces of legislation—such as the Burials and Cremations Act—out of the bill proper and into the Schedule section.

And there are two elements I want to raise on what is on SOP 269. Firstly, to do with the Schedule, in Part 1 we have, in the proposed clause 46CA, a certificate of the cause of death, and in clause 46CA(2) we have a rather backwards-looking piece of text here—and the member in the chair might care to understand or opine. It talks about the medical practitioner or nurse practitioner—

CHAIRPERSON (Hon Anne Tolley): I’m sorry to interrupt the member. In whose name is SOP 269?

I don’t know, actually.

CHAIRPERSON (Hon Anne Tolley): Are you sure it’s not 259?

Oh, apologies: SOP 259. I’m not wearing my glasses. Actually, strangely, if I might, the piece of paper itself says SOP 259, but at the bottom of the document it says “269—2/SOP 25”—apologies.

CHAIRPERSON (Hon Anne Tolley): That’s all right.

Sorry, without my glasses—

💬 Hon Clare Curran: Do you want to borrow mine?

I’m tempted, but then it’s a vanity issue. I’m happy to put that on the record. Anyway, vanitas vanitatum.

So what clause 46CA on SOP 259—and thank you, Madam Chair—looks to do is reference “medical practitioner” or “nurse practitioner”. Now, in and of itself, that’s not a problem, but those in the House who’ve been here a little while will know that we passed a piece of legislation around, basically, replacing terms like “medical practitioner” with “health practitioner”. So we’ve ended up with a rather perverse dynamic, I’d suggest, here of actually limiting those who are available to actually sign the certificate of death. I would like to know whether the member in the chair is conscious that he has actually limited things here—and maybe it’s for a good reason. But, again, what we did a couple of years ago was to make sure that where once documents related to the certification of death were only the purview of a medical practitioner—particularly for those maybe not as versed in health, a medical practitioner is, effectively, and solely, a doctor—we changed the law to mean that, actually, anyone who is a health practitioner, and that would include nurse practitioner, would be included. So I raise that as an option there: that actually we amend it. I might table an amendment later to try and tidy that up. I think it would be more in line with existing legislation. I think the member who took the initial call was talking up that this particular Schedule coming out of clause 28, links clause 28, is meant to align things. If that is true, then there should be an amendment to clause 46CA(2) to, basically, say “a health practitioner who is available to the person must, before the death, give the certification.”

The next element that’s in this Schedule, which in turn relates to clause 28, is in Part 2. It’s something I’ve had a problem with for a long, long time. It’s in relation to births, deaths, marriages, and relationships registrations. It’s always rather long, but the second subparagraph there of new regulation 7(1)(a)(xiiia)—or “13a”, if you take out the Roman parlance—is to indicate that the person died of their terminal illness. That is completely inaccurate. I would ask that that be removed. The person in a euthanasia assisted suicide situation does, by definition, not die of their terminal illness. If they were to die of their terminal illness, they’d be dead. They die because someone has injected them with a poison and a muscle relaxant—or in other cases, sedation, initially in their cup of tea, followed by the prescribed drug. So this is a falsity, and I think it’s disrespectful to the Parliament and to good legislation that we’re, effectively, lying here. As I say, it’s not what killed them.

If we carry on. So once we’ve, let’s say, accepted that deliberate falsity, we then have to—which I think is positive. Subparagraph (xiiic) talks about the interval between the onset of death and the cause. I think that is fantastic. As I’ve said in the House a few times, most people think that when you’re being euthanised or assisted to suicide it’s quick. That’s not the case. People can last for days. I think that’ll be important for that to be recorded. It’s possibly another tabled amendment to that, because you do have—it is rare—the rare situations where someone will take or be injected with the poison—a barbital, usually—and they actually vomit it up. It’s all quite messy, but they, in a sense, recover, and so they have to be euthanised a second time. There’s a lack of clarity whether or not in that case they would take the initial act of suiciding and continue until it’s finished the second or third time.

We also have, with subparagraph (xiiid), something which is an impossibility. It asks that the person who’s died as a result of suicide—I’ll just use that to speed things up. It says, “the interval between the onset of the terminal illness that gave rise”. Again, it’s an example of completely sloppy drafting. Very few of us know when a terminal illness starts. We know when the diagnosis is given to us, but it’s an absolute medical absurdity that someone knows when the terminal illness arises. For a very simple example: say, I may well be suffering a terminal illness at the moment—no, I’m not an ACT supporter. I won’t know until I’ve actually been to the doctor, who gives me my diagnosis. So this subparagraph (xiiid) is creating an impossibility. There is no way that someone can indicate—a doctor or otherwise—when the onset of the terminal illness was.

So, again, the member might attempt to show some medical knowledge and explain why he continues to be happy with the deliberate falsification of documents; the lack of clarity around subparagraph (xiiic) of whether or not multiple attempts to kill someone is taken as a singular action; and, as I say, with subparagraph (xiiid), how on earth it is possible that the onset of a terminal illness can be rightly put in, and because the member is very interested in form filling out—in fact, this clause, if you will, is in some ways even more substantial about forms and documentations and ticking boxes than actually the provisions which allow a New Zealander to be killed by the State. He may want to look at what legal ramifications there could be with keeping subparagraph (xiiid) in place, because the mischievous amongst us could see many ways of actually beginning to query documentation. In order to illustrate this somewhat, if—and I think some members, from their SOPs, have documents around filling things out wrongly—a doctor in, I suppose, good faith with subparagraph (xiiid) attempts to say when they knew the terminal illness started, that can become a disputable fact on this very basic premise: that because it is not known definitively, it can never be known definitively. Therefore, the doctor who notes here in subparagraph (xiiid) that it started at date X is in error immediately—they’re in error immediately. In some ways, they can never be right—and that obviously opens it up for attack in interpretation.

It just needs a vexatious family member who, you know, might be a little bit upset that mum’s being terminated—or their 18-year-old, for that matter, if they are a mum or dad—who might say, “Actually that form was filled out incorrectly. The doctor who took care of my son or daughter has incorrectly noted the onset of the terminal illness. I believe it started for my 18-year-old who was depressed and ill.” At this date, the doctor says that—we end up with a dispute: who’s going to be right or wrong? How can that be proven? And, personally, I think it would be unfortunate if the doctor or the nurse practitioner who’s filling out this document was to find themselves being fined whatever amount of money. I think Melissa Lee raises some good points. That would be unfortunate.

So those are my particular observations to do with the certification of death. As I say, why does it not just say “health practitioner” rather than the old, rather out-of-date legislation references? And again with Part 2 of the Schedule to do with the replacement of regulation 7(1)(a)(xiii) and the subsequent subparagraphs (xiiia), (xiiib), (xiiic), and (xiiid) of the Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations—actually these are erroneous forms. So I would be keen to know why we are trying to create lies in official documents and why, if we’re going to have the confidence to have the State killing people, that we just don’t say, “Look, they were euthanised. That’s what killed them.” Again, it’s inaccuracy and I’m a great believer in that. As I say, fundamentally, you don’t die of a terminal illness; you die of a poison.

Thank you very much, Madam Chair. I’m delighted to rise and speak on Part 4 of this committee stage of the End of Life Choice Bill and, in particular, Madam Chair, I’m going to speak to Supplementary Order Paper (SOP) 372 in my name. That’s an amendment to SOP 259 by David Seymour.

This SOP proposes to insert the words “gesture or” in clause 24A(3) in order to allow a person to communicate not only by written or spoken words but also by gestures in the event that they wish to rescind their request for a lethal dose. In order to qualify as an eligible person under this Act, a person needs to have been diagnosed with a terminal illness that is expected to end their life within six months. However, an eligible person is also required to be in an advanced state of irreversible decline in physical capability. The phrase “decline in physical capability” is another way of saying “a physical disability”. So if we look at that in terms of that decline in physical capability, that also may be something that reflects, or is, in fact, to do with an impairment of their speech, inability for that person to clearly articulate their intentions orally. So that person may be at an advanced state of irreversible decline in the physical capability to speak.

So in this process of a person making their wishes known around this bill, there may be several months between the period where this person has been deemed approved for this process and the actual date for the event to take place, and that could be months—that period between the eligibility assessment and the administration, and in that period it is feasible that a person may have an impairment or may even lose the ability to speak or to clearly articulate orally what their intentions are. So the gestures may be the only way the person can communicate. It may be the only way that they can respond to the medical practitioner or to the nurse petitioner when that practitioner questions them as in clause 16 whether they still wish to receive the lethal dose at that specific time. By requiring just speech or writing, this bill discriminates against people who for any reason are unable to speak or unable to communicate using oral language, and so the SOP is to insert that the words in clause 24A(3) include “gesture or”.

I’d also like in my remaining time to speak to another SOP in my name, SOP 379—in clause 27(2), to delete “, without lawful excuse,”. This SOP really, again, goes to the heart of making sure we are accountable and giving integrity to the process. Surely we, as legislators, will not give a free pass to anyone who completes an approved form for another person without their consent; likewise, for altering or destroying the approved form for another person without their consent. Maybe the member in the chair, David Seymour, may like to explain for what scenario we would have a lawful excuse for those particular instances that I have described. Again, we are here to make this bill as safe as possible, and I would ask members in the Chamber to please consider the SOPs that I’ve highlighted tonight, 372 and 379, in my name. Thank you, Madam Chair.

Thank you, Madam Chair. I stand to speak in favour of my Supplementary Order Paper (SOP) 377 in my name. Specifically, it relates to clause 26 of SOP 259 penned by the member David Seymour. The specific topic that clause 26 addresses is immunity from criminal liability. I speak in support of my SOP on the basis that the reason for the SOP, which requests the amendment of deleting clause 26(3), is that—the reason, well, it is quite simple. The basis that I ask for the deletion of the clause is quite simple, but it shows up a misappreciation of what a right actually is. So the basis for the SOP is that the clause is redundant. It is my proposal to the members that it is unnecessary to state that an offence is not committed by a person who seeks assisted dying.

The clause implies that requesting assisted dying is an offence under another enactment. But it is not an offence anywhere in New Zealand law to request one’s own death nor to attempt suicide. So there is no good reason to believe that seeking assisted dying could be an offence as well. If a person, under the current law, approaches a medical practitioner or any other person to request a lethal dose of medication to assist that person to die, the person who made such a request would not have committed any offence or crime. However, under current law, if the doctor who receives such a request would accede to it and administer a lethal dose with the intention of ending the person’s life, then the doctor would be committing an offence. Such a doctor could be charged with culpable homicide.

I also take issue with the notion that requesting euthanasia is a right. There is no such thing as a right to request that one’s life be ended—not in the New Zealand Bill of Rights Act nor in the Universal Declaration of Human Rights. It may be more appropriate for this bill that an eligible person be “allowed” to request assisted dying, but it would not be appropriate to state in the bill that such a request is actually a right. A good analogy about this to demonstrate the difference between what is allowable and what is a right: in New Zealand, a person is allowed to own a cat. Owning a cat is not against the law; however, owning a cat is not a right. If it were a right, it would mean that if a person didn’t own a cat, then it would be the duty of the State, or someone, to ensure that the person gets one.

One person’s right is another person’s duty. If an eligible person were to have a right to request assisted dying, it follows that other parties would have the duty to ensure an eligible person is adequately informed of this right and informed about how to exercise it. An eligible person may perceive such a communication, then, as pressure to request that as an expectation to at least consider ending one’s own life. Such information may trigger a person who is already suffering from depression or mental illness to make that decision to ask for assisted dying. Thank you, Madam Chair.

I move, That the question be now put.

Thank you, Madam Chair. I appreciate the opportunity to take a call on this bill, because it is a matter of life and death and it is something which members on both sides of this debate should take very seriously in engaging with. There are a large number of Supplementary Order Papers (SOPs) which have been put forward. There are a lot of MPs who have, and I would like to speak to mine—

CHAIRPERSON (Hon Anne Tolley): Good, get on with it.

—which is Supplementary Order Paper 376, and I will get to it because it’s important, as are all of the Supplementary Order Papers. The Supplementary Order Paper 376 goes to the heart of the issue of immunity from criminal proceedings and criminal liability. We’ve heard David Seymour talk about how this bill is designed to try and ensure that there is a process to ensure that people who are engaged in the process, health professionals, etc., have some protection, and I understand that. I understand that there should be protection, if this bill is to pass, for people who are engaged in that process to have protection so that they don’t face criminal proceedings. However, what this bill does is open up what is a very important part of our law, and that is the presumption that one person should not take the life of another. This bill changes that and, therefore, it is a burden on this House to ensure that there are protections, that there are safeguards so that the people who are having their lives ended are people who have complied completely with every single part of this bill.

Now, my SOP seeks to delete subclauses (5) and (6) of clause 26. I would make the point that most of clause 26 is new, as part of Supplementary Order Paper 259, David Seymour’s; very little has actually survived the rewrite that he’s proposing, so mine is seeking to amend his and remove those two subclauses.

I’d like the member to explain why he believes that it is needed in there to have subclauses (5) and (6), which provide immunity from criminal liabilities for “B or that person, [who acts] in good faith, and believing on reasonable grounds that A wishes to exercise the option of assisted dying under this Act,—(a) takes any action that causes, assists, or facilitates the death of A in accordance with the requirements of this Act” and then, in paragraph (b), if that person “fails to take any action and that failure causes, assists, or facilitates the death of A in accordance with the requirements of this Act … is immune from liability”.

Now, there is an example which is used in here which is an example of “an attending nurse practitioner who, under section 16(5)(a), is available to A, and takes no action to revive A”. That is an example that the member in charge is proposing to put in there. Now, that’s a serious failure to comply. The serious failure to comply is an attending nurse practitioner who is available and takes no action to revive. Now, is the member saying that there should be immunity in all instances for all failures to comply? Or is the member saying that what he is giving the nurse or the attending practitioner is the ability to, essentially, do what they like in these situations? This is a very important question, and I ask that the member actually takes a call and responds to it.

The other point I’d like to make is that the words being used here are the words of “good faith” and “believing on reasonable grounds”. Now, I’d like to ask the member in the chair what he means by “good faith”? What threshold is that? Because it’s not defined in the bill. This is a term which he is going to leave to the courts to determine, whether something has been done in good faith or not. I ask the member to explain why he’s decided to use the words “good faith”? Why has he not used language of “taken every reasonable step” or “taken every step possible”? Just acting in good faith seems to have been the lowest possible threshold that he could think of to place into this clause.

It also says “believing on reasonable grounds”. Well, this is not about just believing on reasonable grounds. This is a process which, in my mind—and in, I think, most members of this House’s minds—it should be a process where the attending medical practitioner knows for certain that that is the will of the person, not just something which they believe on reasonable grounds. I ask for support for Supplementary Order Paper 376.

Thank you, Madam Chair. I take a call on Part 4, “Related matters”, and, in particular, clauses 24 and pertaining to this current Supplementary Order Paper (SOP) 259. I have taken into consideration what you have stated at the beginning of this sitting, and what I’d like to do is to then—and I’ve amended that and I want to table an SOP in a moment, but in particular on clauses 24 and 24A, in regards to “Advance directive, etc., may not provide for assisted dying”, and in particular, clause 24A(2). It’s a concern, because as it states, as it is currently written, “A person who, after signing and dating the request form, wishes to rescind a request to exercise the option of receiving assisted dying under this Act must communicate that wish to the attending medical practitioner or the attending nurse practitioner orally, in writing”, in which, it’s stated clearly here, will be a rescind document.

The SOP that I am wanting to introduce is in regards to the challenges around culture and communication. Many of those who are in vulnerable situations are often not given and afforded the ability to be able to understand the clarity around the decisions that they are making, both from a health and from a medical practitioner’s point of view, and the views that are there. It’s quite clear that we have many cultural competencies; we have culture considerations that are put in place in many forms of legislation to take this into consideration.

Why is this important? We have over 220 ethnic groups that are recognised in New Zealand at the moment. We have 190 different languages that are there. Many times over, most Government departments ensure that there is cultural competency. Why? Because we know the challenges that are before patients, before medical practitioners. It doesn’t get any more serious than this, where a person has to make a decision around life and death, and according to this clause it only has to be indicated orally. So the question that has to go to the member of the bill, who talks about the importance of choice: what about the importance of ensuring that people know what choices that they are making? Many times when we think about it in different cases with different cultures, people may be asked the question, and if I talk about the Pasifika community, people will nod and say yes. “Do you understand?” “Yes.” The truth and the reality is they do not understand the technical implications in this regard.

So I think it’s critically important that this has to have some amendment to it if we are to include this bill into the House. I’d like to include in my SOP cultural considerations. There have been numerous departments who have actually had those culture considerations. It’s about oral considerations, it’s about written, and it’s about interpretation of certain words. I state on the record that I was the chairperson for the Auckland District Health Board Pacific Health Advisory Committee. Even under that, there were many situations in which we had families that were going into hospital, having care and consideration, even in regards to palliative care, and yet they needed to have an interpreter there at every point and at every decision to ensure that they were fully aware and fully conscious of the decisions that would be made on their behalf.

Also in that regard, while we may be looking at a system that is monolithic in the sense that there is one way—I know the sponsor of this bill just thinks that we’re some big melting pot, we’re all just chocolate covered, we’re all going to be one, and that we’re homogenous—the reality is there is huge diversity in this nation and in this country.

I would like to put it to this committee that the members on the other side would consider this very clause—would consider this very clause. It’s critically important that we look at that and look at it in regards to the specialist services that are regarded into this case. I think in this regards, when I’m talking to Part 4, and clause 24A in particular, and clause 24A(2)—a person who, after signing, would decide to rescind a decision—that’s critically important.

I also too want to speak too in regards to the SOP 373 from Kanwaljit Singh Bakshi, which would amend clause 24B inside SOP 259. This is in regards to the welfare guardians, and what it seeks to include, from SOP 373, is that it would include “and attorneys”. The purpose and the reason for that from Mr Kanwaljit Singh Bakshi is to ensure—the fact is that it is not only the welfare guardians but there potentially could be that in which not having a power of attorney could and should include what you call attorneys in this case, and I think that’s critically important. [Bell rung]

CHAIRPERSON (Hon Anne Tolley): I call the Hon Alfred Ngaro.

Thank you, Madam Chair. Thank you for allowing me to complete, on behalf of my colleague who can’t be here, SOP 373. Again, what it states—and it states in here—in regards to after clause 24B on SOP 259, “Welfare guardians”, is that it would insert “and attorneys” in this case. That’s critically important. As it reads, as the full part of the bill, welfare guardians—and then including “and attorneys”—have no power to make decisions to take action under this Act.

This is a vulnerable time. We need to ensure that the right safeguards are put in place. As it further reads in the bill, “A welfare guardian”—“and attorney”—“appointed under the Protection of Personal and Property Rights Act 1998 for a person does not, in that capacity, have the power to make any decision, or take any action, under this Act for that person.”

We are in a situation where elder abuse is at a state in which there’s real concern, and it often has been shown, whether it be through Age Concern and other organisations, NGOs, that are involved in the situation—they’ve clearly indicated that 75 percent of that type of elder abuse is by either family members or people that are trusted and known around them. These safeguards, in this regard—in regards to SOP 373—are critically important so that we ensure that the right people are put in place in that regard.

I want to then conclude my part by talking about SOP 379 in the name of Agnes Loheni, which talks to clause 27: “without lawful excuse,”. This Supplementary Order Paper amends Supplementary Order Paper 259 amending the End of Life Choice Bill by clarifying that legislators do not contemplate that there could be any lawful excuse for (a) completing an approved form for another person without their consent or (b) altering or destroying an approved form for another person without their consent.

We think, and I believe, that these clauses are critically important. Part of our role as legislators is to make this bill the best possible. Even though we don’t support the bill—it is unsafe—we do want to try and ensure that, actually, there are some clauses in there that ensure that in regards to the vulnerable situation around the consenting, unless there are powers of attorney—this is a critically important part. I want to state that this SOP 379 again goes to the heart of the issue to make this bill safe.

I want to end my final comments in the time that I have available, and I want to refer back again to clause 24. Again, it’s about the other rights and duties not affected, and my SOP that I will submit and table for the committee talks about some of those cultural considerations that are there, and, in part of that, “A provider of assisted dying services must ensure that the services of a competent interpreter are provided for a person who requests assisted dying services,”. It is often those that are more vulnerable—we know that we’ve already seen that in New Zealand alone, the inequities in regards to Māori in the healthcare services are already out there. We know that it’s there. Many members on the other side realise that this is the reality. What we are stating here is that we have the appropriate interpreters, number one, who understand the medical conditions, the ramifications, but also who understand the values and views of those different cultures that are there.

We know that even under the Coroners Act, that has been passed in this House, that consideration is put into law, and it does state things such as the values, beliefs, and customs but also the spiritual considerations of those family members and those people in that regards. I think it’s critically important that cultural consideration be recognised. That ensures the fact is that people are fully aware—they’re competent of the situation.

In many cases, we’ve heard from doctors who’ve said sometimes there is a misdiagnosis. If there has already been—as stated in this part of the bill—an advance directive and there needs to be a change, if the appropriate interpreter has not been put in place to rescind the decision, then that puts that person in a vulnerable situation. We’ve already seen that happen in other jurisdictions internationally. There’s been a case that’s gone to the high court in the Netherlands, and in that case, again, an advance directive was there. However, at that point in time, the patient themselves wanted to rescind, and they tried to do that orally. It was a tragic situation where the family members had to hold that person down—that patient down—so that they could be administered a lethal dose.

That’s the reasons why on this side we would urge that there would be some consideration to these SOPs and that there would be consideration around cultural considerations to make it appropriate and right so people fully understand the decisions that are being made on their behalf and the decisions that they’re making in regards to assisted dying.

I call Harete Hipango. I don’t think the member was in the Chamber when we began and I made it clear that the Supplementary Order Paper (SOP) in your name, SOP 383, relating to duties in relation to the Treaty of Waitangi, was out of order and therefore there will be no debate on those SOPs.

I’ve been briefed since, Madam Chair. Thank you. I now speak to Supplementary Order Paper (SOP) 259. That has been accepted through the Clerk’s Office. It is on the Table, and I intend to address the committee and members of the public in relation to this Supplementary Order Paper.

To those of us who are viewing out there in the public, a Supplementary Order Paper is an amendment to what is proposed under this bill. There are a number of amendments that have put by my colleagues here in the committee, and this is critically and literally a matter of life and death.

Madam Chair and everybody who is listening in, I stand to speak to this Supplementary Order Paper 259, which is in relation to clause 27B, proposed to be inserted after clause 27A, which addresses and states duties in relation to the Treaty of Waitangi. Madam Chair and members and members of the public—

CHAIRPERSON (Hon Anne Tolley): I’m sorry to interrupt the member, but that has been ruled out of order, and no debate on that SOP.

Madam Chair, my understanding is, as I have been briefed, that it had been resubmitted and that the clerks had endorsed or approved that.

CHAIRPERSON (Hon Anne Tolley): Well, I’m sorry, but I don’t have it in front of me, so—

Well, until we clear that, Madam Chair, then perhaps—

CHAIRPERSON (Hon Anne Tolley): Sorry, but I have ruled that there is no debate on that until something is put in front of me, because, actually, it is the presiding officer who decides whether something is in order or not. It’s not—the officials can give advice, but it’s the presiding officer, and I haven’t seen anything to make a decision on.

💬 Chris Penk: I raise a point of order, Madam Chairperson.

CHAIRPERSON (Hon Anne Tolley): If you’re going to challenge my ruling—

💬 Chris Penk: I’m not. My point of order is to seek clarification that we, presumably, are able to speak to the subject matter—provided we don’t—that might happen to have been contained—

CHAIRPERSON (Hon Anne Tolley): No.

💬 Chris Penk: My understanding is that we can’t speak to SOPs.

CHAIRPERSON (Hon Anne Tolley): No. I ruled very clearly at the beginning that those two were out of order.

💬 Chris Penk: Yes. Those two SOPs.

CHAIRPERSON (Hon Anne Tolley): Those two SOPs.

💬 Chris Penk: But the fact that a debating point might happen also to be reflected in the SOP.

CHAIRPERSON (Hon Anne Tolley): Well, the Hon Alfred Ngaro just debated it—

💬 Chris Penk: Certainly, but if you’re making a ruling on the basis of repetition—

CHAIRPERSON (Hon Anne Tolley): —circuitously. Sit down—sit down. The member Harete Hipango started referring to the Treaty of Waitangi and her SOP. That is ruled out. If it is changed, then I have to see it before we can allow any further debate. I don’t want another point of order; I have ruled. Harete Hipango had the floor.

Thank you, Madam Chair. Well, until such time—

CHAIRPERSON (Hon Anne Tolley): If she wants to continue her call.

If the Chair would indulge me to do so. Accordingly, I won’t be speaking to that SOP, but if I may address the committee generally, then, in relation to issues of concern following on from my colleagues—

CHAIRPERSON (Hon Anne Tolley): As long as they relate to Part 4 and not general discussion around the bill, because, to date, the committee has accepted that there will be an end of life—you know, we’ve gone through all that in parts earlier.

All right. In my submission, then, I refer to clause 27A on SOP 259, which specifically states, “The Director-General may approve and issue forms for the purposes of this Act.” Also, I know that this matter has been debated previously, but this has correlation and relevance under Part 1, “Purpose of Act”, and the purpose of the Act is “to establish a lawful process for assisting eligible persons who exercise that option.” So I’m just going to defer to the director-general, if this bill is passed into law, having the ability, the mandate, to approve and issue forms for the purposes of this Act.

I’m now going to segue that into the relevance of the Treaty of Waitangi. There may not be a provision—it has been ruled out, and I accept and heed that from the Chair—but these are matters, critically, of life and death. I have previously addressed the House around the responsibility that we have as legislators, and also that the State and the Crown has, in terms of protections and responsibilities to care and provide for our most vulnerable. Our most vulnerable, I submit, are, here, those persons who are afflicted with a terminal illness, and it is a case of a decision to be made around life and death. The relevance around the provisions of the Treaty of Waitangi or the principles of that—and I correlate this to legislation that is the law of this land in relation to care and protection and the welfare of our children, the Oranga Tamariki Act, which provides or states specific duties of the chief executive in relation to the Treaty of Waitangi. Madam Chair, members of the public and of this House, I premise that we know that the foundation of our nation is on the—

CHAIRPERSON (Hon Anne Tolley): Look, I’m sorry, I’m going to interrupt the member because we are debating Part 4. The member talked about clause 27A, where the director-general may approve forms. She needs to relate anything that she’s saying specifically to that clause. Just general conversations, I’m sorry, are out of scope.

All right then, Madam Chair. If I may, then, just making reference to the legislation that is in place in terms of protecting the vulnerable—and I mentioned a reference to the children—I’m going to bring that back to this law as it relates to the forms and regulations that the director-general may approve. I put it that there are many forms and regulations that chief executives and directors-general of State agencies are required, in terms of recognition of those principles under the Treaty of Waitangi and the relationship with the State or the providers of that care around this—

CHAIRPERSON (Hon Anne Tolley): Yes, I’m sorry, but you’re going to have to relate it to the actual forms that the director-general will issue that are in this part, described in this part, as part of this process, OK?

I’m conscious my time is about to run out. I will contemplate that, because the whole point of clause 27A as it has been inserted is that it’s there for the director-general to devise what those forms are. I will address the committee later in terms of some of those specific points, if I may. Thank you.

I move, That the question be now put.

Thank you, Madam Chair. Good call. I did actually earlier say that I have four Supplementary Order Papers (SOPs) in my name, and I’d like to now move and speak on Supplementary Order Paper 364, and it might actually assist some of my colleagues whose SOPs have been ruled out. I guess I was being a little bit facetious when I actually wanted to replace a full stop in clause 24(1)(c), page 17, line 10 with a colon, but that is actually to facilitate a new clause (d): “freedom of religion or belief, or to manifest their religion or belief, as set out in sections 13 and 15 of the New Zealand Bill of Rights Act 1990.” The end of life choice, as I said earlier, and many of my colleagues have also agreed, is actually a life or death decision. This is finality if someone actually makes a mistake. This amendment is to ensure that “the religious, cultural, and faith-based customs of persons will not be affected by the implementation of this Bill.”

Earlier, my colleague Alfred Ngaro talked about some of the cultural issues that are actually faced by medical doctors, and if I can perhaps bring some personal experiences that I have actually experienced in my lifetime in New Zealand when I was earlier in my—

CHAIRPERSON (Hon Anne Tolley): No, no, no. Good try.

I am trying to relate it back to the mistakes that the doctors could actually make.

CHAIRPERSON (Hon Anne Tolley): Well, no. No. We’re past that. We want you to be debating your SOP in this particular part of the bill.

Yes, the End of Life Choice Bill—to ensure that the religious, cultural, and faith-based customs of a person will not be affected. I’m trying to actually say, if you listen to me and if you could indulge me—

CHAIRPERSON (Hon Anne Tolley): I am listening to you.

Yes. For example—and I’m bringing some of the experiences that I’ve had—when I interpreted for a student who was actually in trouble with the school, and when they were called into the principal’s office, their head was bowed down and their eyes were cast down, and the interpretation of the principal of that behaviour was that they were, in fact, guilty. They were not; they were just paying respect to the principal. These are some of the differences in our culture, in our languages, and sometimes, when a doctor is actually asking a patient, “Do you not have pain?”, when the patient says, “Mm-hmm.”, that does not actually mean that they do not have pain, nor does it actually mean that they have pain—

CHAIRPERSON (Hon Anne Tolley): We’re not debating that part of the bill.

These are cultural issues—

CHAIRPERSON (Hon Anne Tolley): Melissa Lee, we are not debating that part of the bill. We’re past that. We’re now on Part 4. You’re talking about clause 24, which is other rights and duties that aren’t affected—if you could just focus on that.

Yes, and I appreciate you clarifying that, and I was just trying to actually talk to the amendment that I have just presented.

If I could actually move on to support my colleague Maggie Barry’s Supplementary Order Paper 374, where it replaces clause 25. Clause 25 basically talks about a person and if they, in fact, die as a result of the provision of assisted dying. It actually says in clause 25 “(a) taken to have died as if assisted dying had not been provided; and (b) taken to have died from—(i) the terminal illness referred to in section 4(c)(i) from which they suffered; or (ii) the grievous and irremediable medical condition referred to in section 4(c)(ii) from which they suffered:”. What Maggie Barry is actually trying to do, in effect, by replacing that clause with her amendment, is to suggest that we should not actually try and hoodwink the actual reason why someone had, in fact, died.

In effect, this bill of David Seymour’s is trying to say that the person did not, in fact, die from a lethal dose of a poison. What they’re actually saying is that for the purposes of someone claiming an insurance policy, they do not actually say the real reason why that person had, in fact, died, and it is actually trying to say that that person did not die as a result of an end of life choice decision and what the doctors had, in fact, done to them as a result of their request. That, to me, is actually a lie, and I do not think that legislation should facilitate the falsehood that this law is actually trying to—[Time expired]

Thank you very much, Madam Chair. Appreciate the call. As a heads-up, as a courtesy to the committee, I want to address two Supplementary Order Papers (SOPs) in my name—hope that I get these ones right; once again, I lost my glasses—SOP 378—

💬 Hon Clare Curran: You can borrow mine.

—that’s a proposed amendment to SOP 259—once again, I do thank the kind offer—and SOP 369. I hope that will ensure relevancy as we continue to dissect this bill. The first one, that being SOP 378, as I say, is an amendment to SOP 259. What this is suggesting is that what is currently as clause 27(1)—to replace what is currently defined as “a medical practitioner, nurse practitioner, or psychiatrist” with “Any person”. What I am positing here to the committee is that is far too narrow when it comes to the case of who’s actually committing an offence or, particularly speaking, wilfully failing to comply. So, at the moment, when we think of the range of people who are involved with assisted suicide or euthanasia, there is a multiplicity of people involved: obviously doctors, obviously nurses, nurse practitioners, psychiatrists. Those are three and that’s spelt out in SOP 259.

My issue, fundamentally and first and foremost, is actually there are more than those three categories of persons who are involved with assisted suicide and euthanasia. Psychologists may still be involved. They may not be the prescribed individuals, but a psychologist will still be involved. Nurses will still be involved. In fact, it’s fairly common practice that nurses are assisting with dying, when one looks at overseas jurisdictions, and, importantly, as I’ve pointed out to the House before, there’s only about 300 nurse practitioners in the country. So we are instantly limiting a whole array of people who may, for one reason or another, be involved with assisted suicide and euthanasia from no longer being able to be held to account as wilfully failing to comply with the legislation.

To further illustrate the point, this also excludes pharmacists. So a pharmacist is not mentioned, on SOP 259, in clause 27(1) in Part 4. So a pharmacist who does not comply with the correct procedures around providing lethal doses of drugs will not be captured as someone who’s actually wilfully committing an offence. That, I would suggest to the committee, is a bit of a problem. Without banging on my usual mantra, but I will because I’ve just indicated I would, this is again an example of sloppiness, absolute sloppiness, in the legal drafting. We know in this House that when we make mistakes, we always have to come back and fix it, and in this case, a, we create ourselves more work and, b, we kill people. So it’s too, too narrow.

The other point which comes out of SOP 378 is to make sure we don’t end up with a rather strange and perverse situation where someone may inadvertently or intentionally commit an offence. Again, they are wilfully, if you will, failing to comply because they themselves haven’t brought them under the current jurisdiction of a medical practitioner, nurse practitioner, or psychiatrist. In other words, someone, you could argue, acting in good faith—I think Simeon Brown touched on it—acts in good faith, does not comply with the rules, and there are copious rules, round and round in circles in this bill. But if they don’t wilfully comply, they can only be held to account, as the legislation is currently written, if they’re a medical practitioner, a nurse practitioner, or a psychiatrist.

So, for the sake of the committee, figure out a situation, if I might phrase it that way, where a doctor has not actually completed their registration. They haven’t completed their registration. So all of a sudden they are no longer, as it is currently written in SOP 259, a medical practitioner. So they may have wilfully failed to comply, but they have no longer actually got their practising certificate. It’s a small opportunity. It’s an odd opportunity, but, as the drafting is currently, they would not actually be able to—[Time expired]

Thank you, Madam Chair, and thank you to the members who have risen to their feet so far and made a contribution to the debate in committee tonight.

We had Melissa Lee, who said that she was worried an administrative error could lead to death and would only be punished by a $10,000 fine or three-month prison term. As I explained in my opening contribution, if somebody dies at your hand and you were negligent or didn’t follow the provisions in this bill of good faith, then you fall on the mercy of the Crimes Act, where the penalties are much, much greater. The administrative penalties are there for scenarios where someone fails to follow the Act but a person doesn’t die. Melissa Lee then said something about people participating under the Act needing to be able to talk to me personally. That was novel. I would say to Melissa Lee that I can almost guarantee that every person involved in the drafting and passing of the Crimes Act 1961 is no longer around to be talked to. Nevertheless, the Crimes Act continues to function very well.

Chris Penk suggested under Supplementary Order Paper (SOP) 381 that we should have the option of a person to access a medical practitioner who can somehow declare or be clear that they do not participate in end of life choice—that they are a conscientious objector. There’s nothing to stop a doctor from saying that they’re such a person, but to make it a legal right, I think, would be deeply troubling because it would amount to Parliament saying to the community that we can’t trust doctors to treat each different patient that comes before them without fear or favour. I don’t think that’s a very good signal for Parliament to be sending to the people out there, particularly the medical profession.

Simon O’Connor asked, “Well, what happens in relation to the cause of death being recorded as being the thing that qualified the person to have assisted death or to be a person eligible for assisted dying under this legislation?” There were several people, actually, who raised the fact that under the requirements of this legislation, the death certificate says that the person died of the illness that qualified them to be eligible for assisted dying, also the fact that they died from assisted dying. So anybody reading that certificate, I think, can figure out that this was done under the law. The person had a given condition which qualified them for the End of Life Choice Bill and also that they died from the End of Life Choice Bill. There’s no subterfuge. It’s very easy for anybody to read and understand what that’s saying.

Simon O’Connor also raised the possibility that doctors would not be able to say accurately when the onset of a person’s terminal illness was and therefore could be subject to legal challenge. Well, clearly we rely on the medical expertise of doctors to act in good faith. Currently under the law, if doctors could be sued for getting things like that wrong currently, there’d be a lot of doctors in court.

Agnes Loheni said that under SOP 372, she wanted clause 24A to be amended so that there didn’t need to be any particular words when expressing a gesture, was in effect what she was saying. She wanted clause 24A(3) to say that a gesture could be used. Well, clause 24A(2), the clause right before it, says that a gesture can be used. Clause 24A(3) just clarifies that if you do use words you don’t need any particular words. It would be a nonsense for the legislation to say that a gesture needn’t have any particular words behind it. I used to think this Parliament would be better with more engineers in it, but I’m becoming less and less certain.

Paulo Garcia—where is he? Mate, slow down. I couldn’t keep up with what he was saying.

💬 Chris Penk: I raise a point of order, Madam Chairperson. I believe that the member in the chair has referred to the absence of another member of the committee. Whether or not deliberately, it’s a breach of the Standing Orders.

CHAIRPERSON (Hon Anne Tolley): I think that’s a bit unfair. I think he was looking for him. He didn’t actually say he was absent, but I will remind him to be careful.

Thank you, Madam Chair. If I couldn’t have seen him, I certainly wouldn’t have remarked upon that. I did honestly seek him because I wanted to address him. I try to address as many members as possible.

Simeon Brown wanted to remove the criminal immunity provisions from this bill. In my view, that amendment is actually out of order because the Chairperson gave very clear instructions to the committee that there would be a form of assisted dying, and an assisted dying law is nothing if not a set of provisions under which somebody can be immune from the criminal law that would normally apply to aiding in somebody’s death. So it’s not something that’s at all compatible with the rest of the bill. Then he also asked, “Why do we have the term ‘good faith’? What does that mean?” “Good faith” means that the person wasn’t harbouring any other motivations that they did not reveal.

Alfred Ngaro asked about cultural competency. I think that’s a very serious concern. It is critical that medical professionals—

CHAIRPERSON (Hon Anne Tolley): I’m sorry to interrupt the member, but the time has come for me to leave the Chair.

Sitting suspended from 6 p.m. to 7.30 p.m.

I was addressing some of the concerns that members had raised in earlier speeches before the dinner break, and I’d addressed what had been said by Melissa Lee, Chris Penk, Simon O’Connor, Agnes Loheni, Paulo Garcia, and Simeon Brown. I then come to what was said by Alfred Ngaro. Alfred Ngaro asked that an amendment be supported asking medical practitioners playing a role under the Act to respect the cultural values of their patients. I’d point Mr Ngaro to the Health and Disability Commissioner’s code of rights that all patients have access to. Of course we expect all medical professionals in New Zealand to be respectful of who their patients are. It would be quite extraordinary if that wasn’t the case, and I think it would be a terrible signal for Parliament to send, that in specific instances they’re required to carry out those kinds of duties, because the implication might be that they weren’t expected to carry out duties of cultural competency in other settings. I think that’s a terrible signal to be sending.

He also spoke to Kanwaljit Singh Bakshi’s Supplementary Order Paper 373. That amendment asked why the bill doesn’t explicitly rule out the use of a power of attorney given that there is a clause—clause 24B—that says, “Welfare guardians have no power to make decisions or … actions under this Act”. The reason is that welfare guardians are people who act for somebody who has never had the competency to make a particular decision. We felt we needed to clarify that. On the other hand, when it comes to powers of attorney, those are people who express previously expressed views by a person who can no longer express them. If we look at clause 24A(2), it’s already quite clear that “any provision expressing such a wish is included by the person in an advance written or oral directive, will, contract, or other document (not being a rescind document)” is an invalid provision. So that has already been addressed.

Finally, we come to Simon O’Connor, who advocated for SOP 378. He noted that the penalties set out in clause 27, I think it is, are offences for a medical practitioner, a nurse practitioner, or a psychiatrist, and he asked why there wouldn’t be offences identified for other people. I want to just go into this in a little bit of detail, because the way that this bill works is it provides immunity to the sanctions under the Crimes Act if a person carries out the duties required under this Act. If you’re not carrying out a duty under this Act, then you can’t be eligible for the immunity from the Crimes Act, and you’re subject to all of the sanctions in the Crimes Act for anything that you may do. So the reason why pharmacists, for instance, are not included in clause 27 is simply that there is not a requirement on them to do any specific thing under this Act, QED there is no way that they could gain the immunity provision anyway. So it would be rather odd for them to be in any way required not to carry out an offence.

I’d comment to Mr O’Connor—he said several times that he felt the drafting of the legislation was sloppy. Well, I’d like to reassure members of the committee that this bill initially drafted by me has been overseen through a select committee. It’s had advice from the justice department, thanks to the Minister of Justice, and had oversight from the Parliamentary Counsel Office. They are very impressive legal drafters; I would say the best in the country. It’s also had advice pro bono from Russell McVeagh, one of New Zealand’s oldest and most reputable law firms, who’ve given a huge amount of their time for free. So, when you put all that together, the quality of drafting and the advice that’s gone into it is very high, and I’d caution members against saying it’s sloppy, particularly when they reveal that they fundamentally don’t understand the bill in the amendments that they put forth.

So that’s the contribution I have in the time that I’ve got in this particular slot, but I welcome any other contributions people may make, assuming, of course, that they are new material and things that I haven’t already addressed and are relevant to provisions in this bill, particularly Part 4. Thank you, Mr Chair.

Thank you, Mr Chair, and thank you for the opportunity to take a call on this bill and to be able to continue the conversation around Part 4 of the End of Life Choice Bill and to bring new material and new perspectives to this debate, and I’m glad that you are the determiner of that. I’d like to speak in support of my Supplementary Order Paper (SOP) 371, and this is amending David Seymour’s Supplementary Order Paper 259. What it proposes to do here is in regards to clause 24A, which is around advance care directives and how they may not be provided for assisted dying, or how they may provide, and the interaction between the choice that someone makes to have their life ended through assisted dying and what they may have or may not have already said in a will, in an advance written or oral directive, in a contract, or other document.

What the Supplementary Order Paper specifically is is in regards to clause 24A(2), and it is to remove the second part of that clause, which is “and to the extent that any provision expressing such a wish is included by the person in an advance written or oral directive, will, contract, or other document (not being a rescind document) that provision is invalid”. So what my Supplementary Order Paper aims to do is to ensure that, if someone does choose to rescind their will or change their mind, basically, this SOP is designed to ensure that there is no conflict or hierarchy between the decision they’re making to go forward with having their life ended and a previous document they may have signed where they’ve already said that they don’t want to end their life through assisted suicide.

Essentially, at the moment, what this clause is saying is that the express wish of the person at that time is what stands, and what my Supplementary Order Paper will ensure that that person has to do is actually first rescind their previous will or rescind their previous advance written directive so that it ensures that it is very clear to the health practitioner or to the person who is assisting them through the process what that person’s will is. This is to remove any conflict between the two.

I guess the important point here is that we are dealing here with matters of life and death. We want to ensure that if this bill passes into law, the people who are having their lives ended through assisted dying are the people who have made it very abundantly clear that that is the choice and that there is no conflict of what they may or may not have said. What is important in that is that we want to ensure that we don’t have this conflict, because if something does go wrong or if there’s a review or if there’s something else which happens later, we don’t want to have a conflict of what their intentions were. So my Supplementary Order Paper is aimed at trying to address that conflict, and by doing so, it removes the second part of that clause.

I would, while I’ve got the call, also just speak briefly to Supplementary Order Paper 367 in the name of my colleague Melissa Lee, and that is to do with the penalties which are inserted here under offences in clause 27. The wording here is around the offences and what they mean and the actual penalties which can be put in place. The member has tried to downplay these penalties as being important, but I think it is incredibly important. When one looks at proposed clause 27(1), it says, “A person who is a medical practitioner or specialist commits an offence if the medical practitioner, nurse practitioner, or psychiatrist wilfully fails to comply with any requirement of this Act.” Now, if they do that—if they wilfully fail to comply—they have committed an offence. The penalty, which is here, is a maximum of three months’ imprisonment—

💬 Hon Member: How much?

—three months’ imprisonment—or a fine not exceeding $10,000. I think that’s absolutely, abhorrently low. We’re talking, again, here about life and death, and I urge members to consider Supplementary Order Paper 367 in the name of Melissa Lee, which seeks to bring those into line with what I think this House should find appropriate. Thank you, Mr Chair.

Tēnā koe e Te Heamana. Wan shang hao. Hsieh hsieh. I appreciate the call, Mr Chair, and I specifically want to talk to Supplementary Order Paper (SOP) 381 in the debate on Part 4, “Related matters”, of this End of Life Choice Bill. I have to commend Chris Penk, who has been incredibly productive. Essentially, his proposition is that a consumer has the right to request and receive services from only a provider who does not provide services authorised by the End of Life Choice Bill. Obviously, the End of Life Choice Bill doesn’t authorise specific providers. It actually is the option of any person who has a terminal illness, through their own intervention, to talk in the first instance to their medical practitioner. That then instigates a series of other engagements to ensure that person can give informed consent.

But, in highlighting this specific SOP, I do want to acknowledge that today, 2,605 New Zealanders came to our Parliament. They presented a petition, and that petition requested that Parliament provides disabled people and others the choice to receive services from only the health professionals who don’t engage in assisted dying. I want to focus on the amendment on SOP 259 to the Schedule of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 which is, in fact, proposed clause 5A, “End of Life Choice Act 2017”, of that Schedule. If you read through all of that particular section of the bill, it makes some exemptions, and those exemptions are as already codified in the health and disability consumer code of rights.

So we’re actually about ensuring that there isn’t any conflict between that particular code and this piece of legislation—and I’ll give us an example. In the proposed legislation, proposed clause 5A(2) and (3) focuses on right 4(2) of the code and also on clause 7 and clause 7(1) of the end of life choice legislation. Now, you have to understand what the end of life choice legislation says in order to see the relevance to the code. So those particular sections are titled “Assisted dying must not be initiated by health practitioner”—that’s a fundamental principle. This bill is not about medical practitioners telling their patients that this option exists; this is about patients who are empowered choosing end of life choice themselves.

Clause 7(1) is actually really important because the health practitioner “must not” initiate the discussion, and they may not make a suggestion. Now, where this overlaps with the whole intention of the Code of Health and Disability Services Consumers’ Rights is actually an assumption within the code that people have the competence to give informed consent. One of the issues that we should be aware of is that within the code of disability rights, because it’s assumed people can give informed consent, there is actually, through the provisions of some of these rights—and I’ll just focus on one in particular. This right is that if the person isn’t competent and they haven’t got a power of attorney, the provider actually may decide the service that is best in the interests of the consumer; so what this particular clause does is suspend the code of rights and makes the provisions in this bill paramount. So that’s incredibly important because, based on the code of consumer rights, actually, the requirement to go through a series of processes that ensure the person is competent to give informed consent could be compromised if that code of rights was held to be paramount over the provisions in this piece of legislation.

The other thing I wanted to highlight is that actually already contained within the code of rights—it’s right 1(3)—is “Every provider must take action to—(a) inform consumers of their rights; and (b) enable consumers to exercise their rights.” So, in fact, already contained within the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 is a requirement that consumers are informed of their rights, and it enables consumers to exercise their rights over what health services they choose.

So, when you not only think about the SOP but think about it in conjunction with the petition—which is, in fact, what happened today; Chris Penk met the petitioners—they wanted to make sure that they don’t engage with health professionals that provide assisted dying. That’s already in the code. You know, consumers can ask health practitioners whether they support end of life choice, and if that health practitioner says yes, then it’s well within that person’s right to say, “Well, I’m choosing not to be one of your patients. As a consumer, I have autonomy. I can make these decisions for myself.”

So this is superfluous—that’s the point. We don’t actually need this SOP. It doesn’t add any value. It certainly doesn’t add any value to the section in the legislation, and—

💬 Simon O’Connor: No power imbalance?

No, it doesn’t—not at all. In fact, this would contradict the whole intention of the exclusions to the health and disability consumer rights legislation, which is why we’re saying right up front—because the other assumption in this is that clinicians can talk to their patients about all their options. I mean, that’s a part of it.

Right 6(1)(b) in the Code of Health and Disability Services Consumers’ Rights is “an explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option;”. So, in fact, under the code of rights currently, clinicians would have the opportunity and would be able to talk to their patients about end of life choice options. So that’s why the exemptions are really clear in this piece of legislation that we will not allow that to happen.

You know, this bill is really clear that nothing will happen unless the patient initiates it themselves. If they do not initiate the conversation with their health professional, nothing can happen. If there is coercion in any form, it would negate the ability and the integrity of this piece of legislation.

So I’m actually just highlighting for the committee that what Chris Penk is attempting to do is already covered, but also I fear that it will actually contradict the intention of this bill, which is actually to empower people with a terminal illness who want to make an end of life choice decision to initiate that conversation with their health practitioner before anything else happens. Kia ora.

Kia ora e Te Mana Whakawā. Just prior to the dinner break, there was some miscommunication around a Supplementary Order Paper (SOP) that had been submitted in my name and initially ruled out of order. But it has been resubmitted, and it is under SOP 384—in fact, there are two of them—and SOP 385. I will address the committee in relation to SOP 383 as it relates to proposed new clause 27B of the bill at this time, and that relates to—looking to the correct bill, it is “The Director-General may approve forms and issue forms for the purposes of this Act.”

CHAIRPERSON (Adrian Rurawhe): You can speak to SOP 384, but not SOP 383.

Could you please clarify, Mr Chair, why that would be?

CHAIRPERSON (Adrian Rurawhe): SOP 383 has been ruled out as belonging to Part 2, but you can speak to SOP 384.

All right, Mr Chair, and then perhaps some inquiry will be made about SOP 383, because it’s been communicated to me that it had been accepted. I accept that you don’t have that before you at this point in time.

In relation to SOP 384—and I need to get the correct papers to hand around that—that is talking about duties in relation to the Treaty of Waitangi as pertain to the responsibilities of the responsible organisation. In other words, the health service provider would have a requirement around providing a practical commitment to the principles of the Treaty of Waitangi. My submission to the Chair, to the House, and to members of the public is that in relation to the director-general approving and issuing forms, those forms would be as to the process and the procedure that would be implemented under this bill, around the terminally ill seeking to not only provide informed consent but the treatment around medication or the injection to end their lives.

The particular part in terms of the Treaty of Waitangi and under this Supplementary Order Paper, an amendment to what is proposed in clause 27A on Supplementary Order Paper 259, is that there becomes a requirement and an obligation and a commitment, as there is under other legislation pertaining to vulnerable persons in this land, to the principles of the Treaty of Waitangi, and that is around process and procedure. It’s well-known, as I’ve indicated in the House before, that we have laws of the land, we have legislation, that is there to provide safeguards, protections, for our vulnerable people. In other words, a classic example of this is our children under the Oranga Tamariki Act 1989.

Under this SOP, it has been taken word for word, the proposed amendment to proposed new clause 27A, which I now have there inserted as proposed new clause 27B. It is taken word for word from the Oranga Tamariki Act, section 7AA, the duties that are incumbent on an agent of the State—an agent of the State—to comply with what the principles of the Treaty of Waitangi are in terms of the application of process and procedure for the treatment of our people. I talk about, specifically, how this has bearing in relation to the recognition of the principles under the Treaty of Waitangi—as is well-known, article 1, kāwanatanga. It is about that principle as it relates to governorship and the ability for Māori, who would be the recipients of any type of treatment under this bill, around them and the organisation that would be providing the service and the care, to be bound by these commitments of principles of partnership. I talk about the kāwanatanga principle: the right of the Crown to make laws and its obligation to govern but Māori interests, in particular, having an appropriate priority.

Coming back to this particular proposed SOP for an amendment to clause 27A is around the issuing of forms as it relates to process and procedure. I will be seeking to extend this call also, because, going into article 2, which is the premise of legislation relating to the protection of our vulnerable—that is our children; it is there clearly in law—there has been no consideration factored into this bill around the protection of our vulnerable. The principle of rangatiratanga, which is the second article of the Treaty, guarantees Te Iwi Māori the control and enjoyment of the resources of their taonga.

We talk about and I’ve heard repeatedly in the House “He aha te mea nui? He tangata, he tangata, he tangata.”—what is the most important? Our people, our people, our people. I sat and listened in the House last evening. There was debate around the Local Government Act and there was, in fact, from members in this House, recognition in the importance of not only the Treaty and the principles of the Treaty of Waitangi but the relevance of tikanga, the relevance of tikanga Māori, and that’s where I come back to again: process and procedure—article 2, rangatiratanga principle.

This SOP is also seeking to have endorsed and accepted by way of process and procedure article 3, the principle of equality and the principle of equity. We are dealing with a piece of proposed law here that is targeting our most vulnerable, that is literally a matter of life and death. We must not overlook the relevance and the important of the principle of equality and equity for those who are seeking to be treated under the law.

So the third article, guaranteeing legal equality between Māori and other citizens—“other citizens” are also all other cultural ethnic groups, the diversity that makes up the face and the shape of this nation. This bill does not address that in any form whatsoever—the principles, the articles of the Treaty of Waitangi—and it is well-known that the legislation of this land requires that commitment, which has been mandated in numerous pieces of legislation that have been before this House: last night, the Local Government Act; earlier in the year, the Coroners (Access to Body of Dead Person) Amendment Act, and the relevance and significant of those cultural factors, values, considerations. I implore the members of this House, I implore members of the public, that we have a duty of care and responsibility to our most vulnerable. This bill that’s proposed has no lens, no optics whatsoever, in terms of addressing that.

I will state again categorically: I know that I am the only member of Parliament in this House who has practised law, who has advocated for our vulnerable, who has advocated for the care, protection, welfare, oversight, and also the checking and the tests of the evidence there before the courts to ensure that the safeguards are in place. In this bill, it’s purported that they are. I categorically can declare that that is not the case, and I denounce what is proposed here.

I will also go back to an earlier conversation that I had with the sponsor of the bill. I highlighted and brought to his attention that the template for these checks and balances around safety in a health procedural aspect is the Mental Health Act, and the sponsor well knows that I said that that was the template and that was the standard. I have practised as a district inspector in the mental health courts, where those of our vulnerable people have been detained in the mental health units, and we have had the checks and balances. We have had independent scrutiny. It has not been left to the discretion of the medical practitioner, who is not versed, who is not trained in ascertaining what legal competency is—and the sponsor may well shake his head. I am yet to be enlightened as to whether he has those 30 years of practising experience that I have as a lawyer advocating in that place and in that space. But where the evidence is tested before an independent determiner of fact, called a judge, there is no optics or lens or oversight or independent scrutiny; the competency, the legal capacity of that vulnerable person to make an informed decision around providing informed consent, is left to a medical practitioner.

In wrapping up this part of my address to the committee, I am going to share from a personal experience. I was appointed as a welfare guardian for my father. I have a legal background, and he was dying, and it was very clear that the medical practitioner knew. It was on the record: they had seen it and they had initialled beside it that I was the person to have been consulted around any change in medical treatment and care. That medical practitioner took it upon herself—it happened to be an international doctor—to say, “Nope. Not going to go there.” and make the decision to withdraw any treatment. My father died soon after.

I would like to add to the debate with some fresh perspectives, but also too I just want to build on what I think is a very substantive contribution by my colleague Harete Hipango in regards to Supplementary Order Paper (SOP) 384. If one looks at the Supplementary Order Paper, the particular part that I want to draw attention to is proposed clause 27B(1), where it states, “Any organisation that is accorded a duty or responsibility under this Act (a ‘responsible organisation’) must perform those duties or responsibilities in a manner that recognises and provides a practical commitment to the principles of the Treaty of Waitangi”. I want to talk about in my contribution what those practical principles and commitment entails.

Mr Seymour, when talking about cultural competencies and considerations, said it was a very serious issue, but then said, “Just let the people choose.” If that was the case, then why is it that we have disparities and inequities for Māori currently, even in our current health system? Why is it that consistently—if Mr Seymour was to go back to that comment, then there would be no need or consideration to have interpreters, to have a consideration under law, as we live under a bicultural nation. Why? Because it’s important to have those principles there, and it just seems that Mr Seymour dismisses it as not being important.

I want to state on record why those are important, picking up the point about a practical commitment. I want to quote from the guidelines for cultural assessments for Māori under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. This is an Act that has been passed in Parliament. It is in law, and, in particular, around disability and health issues that face those in which an assessment needs to be made, it’s stated quite clearly here, under section 23 of this Act, that a Māori cultural assessment is carried out consecutively with a specialist assessment and support needs assessment, which identifies disability and medical needs, which goes to the heart of this issue that we’re debating today.

It is likely that a different person to the Māori cultural assessor will undertake a specialist assessment. Therefore, it is important that the Māori cultural and specialist assessment complement each other and have a clear focus on the best outcome for the person and their whānau. That’s the practical commitment that’s made in this SOP. So while there are high principles that have been discussed and have been debated here in this House, I want to go down to this SOP, which talks about the practical commitment that actually is in law, which is in policy, which is activated.

Nowhere in this bill has there ever been any consideration. I think it’s dismissive of Mr Seymour to stand up and say, “Cultural consideration? It’s important, but let’s just let the people choose.” If we had allowed that, we would have a system that does not allow for the complexities of language and culture. In this, it’s quite clear that it talks about those assessments. It goes even further, because I want to quote from the Medical Council of New Zealand, which talks about a statement on cultural competencies related to this SOP. Stated here in the SOP, which talks about a cultural competency, and if we look at proposed clause 27B—and I’m quoting from subclause (2)(c)(iv)—it is “provide, and regularly review, guidance to persons discharging functions under this Act to support cultural competency as a best-practice feature of the responsible organisation.”

Under the Medical Council of New Zealand, there’s a statement on cultural competency that clearly states this: “The Council has developed a complementary Statement on best practices when providing care to Māori patients and their whānau which deals with the standard expected of doctors when dealing with Māori patients.” There is nothing in this bill that requires that for any health medical practitioner—in particular, to deal with Māori, as this SOP is—they are required to both understand and know and be competent to be able to reflect their values and their views. In particular, in some cases where the language that’s used in this circumstance has to be quite specific, I think that’s critically important.

If as a nation and as a Government and as a department we have made sure that these safeguards are in place, why has this not been enacted inside this bill? Why are members on the other side not standing up and taking a call to also too advocate that this be in place? I think it’s critically important that these cultural competencies are practical, are pragmatic, but, more importantly, ensure that those safeguards are in place for the safety of anyone that makes the freedom to choose assisted suicide.

I move, That the question be now put.

Thank you, Mr Chair. I suspect this might be my last call, actually.

CHAIRPERSON (Adrian Rurawhe): It is indeed.

Fantastic. That’ll give great pleasure to the committee, I’m sure.

A couple of very quick comments. I’m very pleased that Louisa Wall contributed. Kudos to her—I respect. Supplementary Order Paper (SOP) 381—Chris Penk’s SOP—is, effectively, addressing, I would suggest, a power imbalance. In an ideal world, it’s great that a person, disabled or otherwise, sick or otherwise, can have a free and easy conversation with a doctor, but, fundamentally, there are power imbalances. The best analogy I could give is all the legislation we have around workplace relations because, arguably, I could apply that to the same case that if you’re going for a job, you just sit down with your employer. You’re both individuals and you freely engage in chat and choose and negotiate your wages. But we don’t do that. We put extra layers of protection in. As far as I can comment from what I’ve heard from the disabled community in particular—who are not spared, I should add, by this bill, despite the cosmetic supposed changes—they would say that it’s not always easy to have those conversations. If the specialist looking after you is the only one in the country, to what extent are you free to challenge them on their views?

The second element, of course, is yes it’s great if people follow process. One of them is that a doctor is not meant to initiate the conversations, but, of course, once the person is dead, which can happen rather rapidly in this bill, then there’s no way to prove that otherwise. I continue to and will happily say, regardless of what the member in the chair has said about lawyers involved, that this is a shoddy piece of legislation, and I think I’ve demonstrated part by part the glaring holes.

I’ve tabled an amendment—because personal votes are fantastic—around offences. I engaged it earlier, replacing the words “medical practitioner, nurse practitioner, or specialist health practitioner”. At the end of the day, the offences, by being so specific to three categories, instantly and by law keeps others out. Yep, you might not want to have to extend that to, I don’t know, podiatrists and proctologists, but actually there are nurses who are involved, there are pharmacists who are involved, and if the member in the chair actually read his own bill, he would notice that clause 27(2) actually talks quite specifically about completed prescribed forms. Well, yes, that’s a doctor who writes out a prescription, but a pharmacist can also destroy prescribed forms, and by a huge lack in this bill, again by shoddy workmanship, that is lacking. So a great tabled amendment there—looking forward to voting on that one.

I want to talk to my last SOP 369—yes, I have my glasses this time. SOP 369, again, is an example where there’s shoddy lawmaking. This is to amend the bill itself in clause 24. It’s in the section where, basically, it talks about a person not having to—well, it’s about “Other rights and duties not affected”. At the moment, it’s drafted that a person is only able to—“(1) Nothing in [the] Act”, it says “affects a person’s rights to—(a) refuse to receive nutrition: (b) refuse to receive hydration: [or] (c) refuse to receive life-sustaining medical treatment.” Those who understand the law—and I’m not going to presume to be enough of an expert, but, actually, when you start listing things by prescription, statutory interpretation says, well, if it’s not on the list, then it’s therefore not relevant.

So my SOP says that, if you’re going to talk about refusing the likes of nutrition and liquids, you should also say as part of ones rights and duties that you can also receive them. So, again, it’s a rather important element in law that, if you’re going to list options, all available options should be there. In the current drafting, despite these supposed great luminaries who have written it, they seem to have forgotten to put in the word “receive”; that actually a person should be able to receive nutrition, receive hydration, and receive life-sustaining medical treatment, and that is absent currently, willingly or otherwise.

The other problem that flows out of it, and we’ve seen this from overseas, is that by the way it’s currently worded a person who is actually not, if you will, terminally ill and about to die can, by the interpretation of this bill, by refusing normal procedure or normal life-giving activities such as, you know, eating, can make themselves terminal, if you will, and then are valid or are able to take use of this euthanasia and assisted suicide bill.

We’ve seen in other jurisdictions, including the likes of California, and in other jurisdictions that the member in the chair loves to talk about, where someone who is not able to be euthanised or assist themselves to die refuses basic things such as eating and drinking, which therefore makes them able to fall within the ambit of a euthanasia bill. I think that is problematic.

Thank you, Mr Chair. I would like to speak to a couple of my Supplementary Order Papers (SOPs) tonight. I begin with SOP 367 in my name. It actually amends clause 27(2), and I guess what I’m trying to say is that in any other area of life and law, the law actually draws a clear distinction between natural death and unnatural death: murder, manslaughter, and currently assisted suicide is actually treated as a crime, because they end life prematurely in an unnatural way. The line between natural death and unnatural death is unambiguous and makes it easy for all of us and society, I guess, to hold those to account whose actions, in fact, cause the death of someone unnaturally.

In clause 27, “Offences”, in Part 2, this current bill talks about “(1) A person who is a medical practitioner or specialist commits an offence if the medical practitioner or specialist wilfully fails to comply with any requirement of this Act.”, and in subclause (2), it actually talks about “A person commits an offence if the person, without lawful excuse,—(a) completes or partially completes a prescribed form for any other person without that other person’s consent; or (b) alters or destroys a completed or partially completed prescribed form without the consent of the person who completed or partially completed the form.” It goes on to talk about the penalties.

What my Supplementary Order Paper is actually trying to do is make it clearer so that the unnatural death is actually highlighted, because we’re not talking about a natural death; we’re talking about an unnatural death and a wilful act of someone who is actually doing this. My suggestion is to insert “(c) undertake an act to end the life of a person without their consent; or (d) conspires to end the life of a person without their consent; or (e) initiates a conversation with a person regarding their choice to end their life in a way that directs them to decide to end their life; or (f) undertakes any other activity that unduly influences the decision of a person to end their life.”

As other members have earlier said, the penalty that is prescribed in this bill is actually a three-month jail sentence and a $10,000 fine for someone who is wilfully trying to end someone’s life, which is unnatural. They are trying to end somebody else’s life unnaturally, and it is not a natural death. To me, a three-month imprisonment and a $10,000 fine is not good enough. My proposal in my Supplementary Order Paper suggests that we actually go to an imprisonment, which is actually much tougher, of 14 years, and a fine not exceeding $250,000, which I think is actually much better than the current bill as it is written.

I would also like to talk about my Supplementary Order Paper 364, where I am inserting: “(d) freedom of religion or belief, or to manifest their religion or belief, as set out in sections 13 and 15 of the New Zealand Bill of Rights Act 1990.” The reason I actually say that is that the act of faith, the right of religion being denied to those who seek the terminal end—it is a terminal end; it is finality of their creation—is a heart-breaking matter. We cannot allow it to manifest by denying this amendment—their right to faith. The faith of the dying can be the strongest of all. The love of their families, of their church, and of their community is most at risk during the final moments, and at the end embraces their being into eternity. We must embrace the second dying at the end; share the love of their final moment, not consign them to the terror of the absence of their faith, their spirit, and their religion.

I am adding that part into this bill so that they actually have that right. The denial of faith of our nation can be rectified in my Supplementary Order Paper 364 by inserting them clear as doubt—enshrining them into law before us. We, by the passage of SOP 364, ensure that section 6 and not sections 4 and 5 of the New Zealand Bill of Rights Act of 1990 are upheld in the inevitable court cases to come with this shameful legislation. My Supplementary Order Paper, I think, is actually very clear. The right of the faithful actually does matter. The love of their religion does matter. Their community, their customs, and their life, in fact, do matter, and, above all, their rights shall not be denied at the very end of their days when it’s most needed. The manifestation of our faith is the most important thing that we have.

I move, That the question be now put.

Just reminding members that Harete Hipango’s amendments set out on Supplementary Order Paper (SOP) 383 to insert new clause 27B on David Seymour’s SOP 259 is out of order as more appropriately belonging to Part 2 of the bill. Also, as previously advised, the Hon Alfred Ngaro’s amendment set out on SOP 382 to insert new clause 27B on David Seymour’s SOP 259 is out of order as more appropriately belonging to Part 2 of the bill.

The question was put that the amendment set out on Supplementary Order Paper 384 in the name of Harete Hipango to the amendments set out on Supplementary Order Paper 259 in the name of David Seymour be agreed to.

Louisa Wall’s amendment deleting clauses 23 to 28 set out on Supplementary Order Paper 235 is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 369 in the name of Simon O’Connor to clause 24(1) be agreed to.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 364 in the name of Melissa Lee to clause 24(1) be agreed to.

Amendment not agreed to.

Melissa Lee’s amendment to delete clause 25 set out on Supplementary Order Paper 365 is out of order as being inconsistent with a previous decision of the committee on David Seymour’s Supplementary Order Paper 259. Melissa Lee’s amendment to replace clauses 26 and 26A set out on Supplementary Order Paper 366 is out of order as being inconsistent with a previous decision of the committee on David Seymour’s Supplementary Order Paper 259.

The question was put that the amendments set out on Supplementary Order Paper 367 in the name of Melissa Lee to clause 27 be agreed to.

Chris Penk’s amendments inserting new clauses 27A and 27B set out on Supplementary Order Paper 216 is out of order as being inconsistent with a previous decision of the committee on David Seymour’s Supplementary Order Paper 259.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Simon O’Connor to insert new clauses 27A and 27B be agreed to.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Simon O’Connor to insert new clause 29 be agreed to.

Amendment not agreed to.

Louisa Wall’s amendment replacing the Schedule set out on Supplementary Order Paper 235 is out of order as being inconsistent with a previous decision of the committee on David Seymour’s Supplementary Order Paper 259.

The question was put that the Schedule as amended be agreed to.

Schedule as amended agreed to.

House resumed.

The Chairperson reported progress on the End of Life Choice Bill.

Report adopted.

The House adjourned at 10.34 p.m.